State agency lied to spy on reporter

An official of the Rail Safety Regulator (RSR) obtained a journalist’s private cellphone records after she investigated the organisation’s now-suspended chief executive for corruption.

Documents show that someone in the RSR wanted to know to whom Mail & Guardian reporter Athandiwe Saba was speaking so they could trace whistle-blowers in the organisation. The records were obtained with a police subpoena claiming that Saba was a suspect in a housebreaking and theft case.

The M&G has seen an email sent on October 13 2016 from private investigator Christian Botha to former RSR chief executive Nkululeko Poya, which reads: “Herewith attached our second report.”

Botha has confirmed that he was employed by the RSR but denied any involvement in the report.

The introduction of the report, titled Intelligence Report (2), reads: “The task was to establish who from RSR had been [in] communication with [an] M&G journalist by the name Athandiwe Saba during the month of July 2016.”

Saba had written an article that implicated Poya in a scam in which the state agency’s equipment was being used to deliver ANC T-shirts.

The M&G has seen the report, dated the same day as the email, which was commissioned on Saba, as well as the subpoena for her cellphone records, which was signed by both a senior prosecutor and a magistrate in Pinetown in August 2016.

RSR spokesperson Madelein Williams said the rail agency’s board had not authorised journalists to be monitored and these allegations would now form part of an investigation that is pending against Poya.

“The board has never sanctioned any such action against any journalist.
Therefore, the allegation(s) relating to the alleged spying on of a journalist by the CEO, Mr Nkululeko Poya, is taken in a serious light and it is precisely why it has been included in the investigation,” Williams said.

For cellphone records to be obtained from a service provider, a case has to be opened with the police. The police then must draw up a section 205 application under the Criminal Procedure Act to compel a service provider to release the information to the authorities.

The application must include a sworn affidavit by a police investigating officer and a copy of the full docket. If a prosecutor is satisfied with the contents of the application, it will be signed and taken to a magistrate to be authorised.

In Saba’s case, an investigating officer at the Hillcrest police station in KwaZulu-Natal said on the section 205 form that she was a suspect in a housebreaking and theft case. Section 205 was used to subpoena her records from MTN and Vodacom for two cellphones she used.

After the magistrate signed off on the request, MTN and Vodacom handed over documents to the police, which showed who Saba had been speaking to when she made and received calls, and even included who she had text-messaged.

Two months later, these personal details ended up in the RSR’s Intelligence Report (2), in which the names of “suspects” in the organisation to whom spoke Saba were identified.

A police officer who assisted in bringing the case to prosecutors claimed he did not know that Saba was a journalist and said a case of fraud could be opened against the police with the Independent Police Investigative Directorate if Saba had been falsely accused of housebreaking.

The National Prosecuting Authority said it could not comment at this stage.

Poya denied having anything to do with the report. “I didn’t even see the report. I have no idea what report you are talking about,” he said.

He did not say why an email sent from the private investigator to his personal email account had the report attached to it.

He was placed on precautionary suspension by the transport ministry in December pending an investigation into his conduct as chief executive.

The police in KwaZulu-Natal have launched an investigation after receiving questions about the incident from the M&G. Jay Naicker, the spokesperson for the province’s police, said: “Although at this stage we cannot confirm or deny the involvement of any member, we regard these allegations as extremely serious and detectives from the provincial commissioner’s office have been tasked to investigate this matter.

“If from our investigation we find that there was any wrongdoing, we will ensure that departmental and/or criminal charges are instituted against those responsible.”

The Right2Know campaign in 2017 released statistics that showed that law enforcement agencies are spying on at least 70 000 cellphones each year. R2K compiled the statistics after asking telecommunications service providers how many warrants they received in terms of section 205 in the years 2015 to 2017.

It was the first time an investigation had been concluded into how many section 205 warrants are served upon service providers by state law agencies.

MTN has said it is willing to pursue criminal charges against those who solicited it to release Saba’s confidential information under alleged false pretences.

Meanwhile, Poya has recently been accused of spying on his own colleagues. Earlier this month, a RSR whistle-blower told TimesLive that Poya had been spying on board members, but he denied the allegations.